Political Broadcasting

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  • The FCC’s Media Bureau released a Public Notice announcing the opening of a filing window for construction permits for new
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With less than a month to go before the November election, we can expect more and more attack ads, some of which may lead to cease and desist letters from the candidate being attacked.  These letters can raise the risk of defamation claims against broadcasters and cable companies when the ads are not bought by candidates.  The use of artificial intelligence in such ads raises the prospect of even nastier attack ads, and its use raises a whole host of legal issues beyond defamation worries, though it raises those too (see our article here on defamation concerns about AI generated content, and our articles here, here and here about other potential FCC and state law liability arising from such ads – note that since our last article on state AI laws, there are now over 20 states with AI laws I place).  Given the potential for a nasty election season getting even nastier, we thought that we would revisit our warning about broadcasters needing to assess the content of attack ads – particularly those from non-candidate groups. 

As we have written before, Section 315 of the Communications Act forbids broadcasters (and local cable companies) from editing the message of a candidate or rejecting that ad based on what is says except in extreme circumstances where the ad itself would violate a federal criminal law and possibly if it contains a false EAS alert (see, for instance, our articles here, here and here).  Because broadcasters cannot censor candidate ads, the Supreme Court has ruled that broadcasters are immune from any liability for the content of those ads.  (Note that this protection applies only to over-the-air broadcasters and local cable companies – the no censorship rule does not apply to cable networks or online distribution – see our articles here and here)  Other protections, such as Section 230, may apply to candidate ads placed on online platforms, but the circumstances in which the ad became part of the program offering need to be considered. Continue Reading Broadcasters Should Evaluate Attack Ads for Liability Concerns in the Final Weeks Before the November Election

October is, on paper, another busy month of regulatory deadlines for broadcasters.  But there is again the looming possibility of a federal government shutdown beginning October 1 if Congress fails to fund the government for the coming year (or pass a “continuing resolution” to allow government agencies to function at their current levels).  While as of today there are reports of a plan to extend funding through December, until a continuing resolution is passed, the threat remains.  If a shutdown does occur, the FCC, the FTC, and the Copyright Office may have to pause their operations which may result in some of the regulatory deadlines discussed below being delayed.  However, in some cases agencies have leftover funding to keep them functioning for a few extra days.  Stay tuned to see if any of the dates below have to be rescheduled. [Update – 9/26/2024, 9:00 AM – a continuing resolution extending government funding through December 20 was passed late yesterday by both the House and the Senate averting, for now, the shutdown about which we were concerned. Thus, the deadlines listed below are in effect as scheduled]

Assuming this recurring issue is resolved, let’s look at some of the October dates and deadlines, starting with the routine dates of importance to broadcasters. October 1 is the deadline for radio and television station employment units in Alaska, American Samoa, Florida, Guam, Hawaii, Iowa, Missouri, Northern Mariana Islands, Oregon, Puerto Rico, the U.S. Virgin Islands, and Washington with five or more full-time employees to upload their Annual EEO Public File Report to their stations’ Online Public Inspection Files.  A station employment unit is a station or cluster of commonly controlled stations serving the same general geographic area having at least one common employee.  For employment units with five or more full-time employees, the annual report covers hiring and employment outreach activities for the prior year.  A link to the uploaded report must also be included on the home page of each station’s website, if the station has a website.  Be timely getting these reports into your station’s OPIF, as even a single late report can lead to FCC fines (see our article here about a recent $26,000 fine for a single late EEO report).Continue Reading October 2024 Regulatory Dates for Broadcasters – Quarterly Issues Programs Lists, Annual EEO Public File Reports, ETRS Form One, Comment Deadlines, and More

  • The FCC announced that it has corrected its CORES database which had overstated the regulatory fees to be paid by
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  • The FCC announced that annual regulatory fees must be paid through its CORES database by 11:59 p.m., Eastern Time, on
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After postponing consideration of a proposal (which we wrote about here) from the Republican Commissioners at the Federal Election Commission to reject calls for a rulemaking to look at whether to require that there be labeling of political ads generated by artificial intelligence that falsely depicts a candidate, the AI item is back on…

  • The FCC released its Second Report and Order setting the annual regulatory fees that broadcasters must pay for 2024. 
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The lowest unit rate window for the November 5 general election opens today, September 6.  With that date in mind, we thought that it was a good idea to review the basic FCC rules and policies affecting those charges. In this election, with the Presidency and control in both houses of Congress at stake as well as many state offices, advertising on broadcast stations, particularly those in some battleground states, is already in great demand by both candidates and issue advertisers.  Your station needs to be ready to comply with the FCC’s political advertising rules and the rates that apply to each of these groups. Lowest unit charges (or “Lowest Unit Rates”) guarantee that, in the 45 days before a primary and the 60 days before a general election, legally qualified candidates get the lowest rate for a spot that is then running on the station within any class of advertising time running in any particular daypart. Candidates also get the benefit of all volume discounts without having to buy in volume – i.e., the candidate gets the same rate for buying one spot as your most favored advertiser gets for buying hundreds of spots of the same class. But there are many other aspects to the lowest unit rates, and stations need to be sure that they get these rules right.

It is a common misperception that a station has one lowest unit rate, when in fact almost every station will have several, if not dozens, of lowest unit rates – one lowest unit rate for each class of time in each daypart. Even at the smallest radio station, there are probably several different classes and dayparts for advertising spots. For instance, there may be different rates for spots running in morning drive than for spots that run in the middle of the night. Each time period for which the station charges a differing rate is a class of time that has its own lowest unit rate. On television stations, there are often classes based not only on daypart, but on the individual program. Similarly, if a station sells different rotations, each rotation that offers substantially different benefits to an advertiser will be its own class of time with its own lowest unit rates (e.g. a 6 AM to Noon rotation is a different class than a 6 AM to 6 PM rotation, and both are a different class from a 24-hour rotator – and each can have its own lowest unit rate). So, in the same time period (e.g. morning drive on a radio station), there may be spots running in that period that have multiple lowest unit rates (e.g.  spots may end up running in that period that were sold just for morning drive, as well as cheaper spots that were sold as part of a 6 AM to 6 PM rotation that just happened to fall within the morning drive period).  Candidates can buy into any of those classes of time, and they take the same chances as does a commercial advertiser as to where their spots will land (e.g. if a candidate buys a 6 AM to 6 PM rotator, and that rotator ends up in morning drive, another candidate may buy that same rotator the next week and end up at 4 PM. That second candidate can only guarantee that they will end up in morning drive by buying a spot guaranteed to run in that time period).Continue Reading Window for Lowest Unit Rates for Candidate Advertising for the November Election Opens Today, September 6 – Are You Ready? 

It seems like virtually every panel at every broadcast and media convention, at some point, ends up involving a discussion of Artificial Intelligence. Sessions on AI are filled to capacity, and sessions unrelated to the topic seem to have to mention AI to appear relevant.  Whenever there is a topic that so thoroughly takes over the conversation in the industry, we lawyers tend to consider the legal implications.  We’ve written several times about AI in political ads (see, for instance, our articles here, here and here).  We will, no doubt, write more about that subject (including addressing further action in the FCC’s proceeding on this subject about which we wrote here, on the Federal Election Commission’s pending action on its separate AI proceeding, consideration of which was again postponed at its meeting last week, and on bills pending in Congress to address AI in political advertising). 

We’ve also written about concerns when AI is used to impersonate celebrities and to create music that too closely resembles copyrighted recordings (see, for instance, our articles here and here).  When looking for new creative ways to entertain your audience, a broadcaster may be tempted to use AI’s ability to have a celebrity “say” something on your station by generating their voice with some form of AI.  As we noted in our previous articles, celebrities have protected interests in their identity in many states, and there has been much recent activity, caused by the advent of easily accessible generative AI that can impersonate anyone, to broaden the protections for the voice, image, and other recognizable traits of celebrities.  A federal NO FAKES Act has also been introduced to give individuals more rights in their voice and likeness.  So being too creative with the use of AI can clearly cause concerns.Continue Reading Using Artificial Intelligence in Developing Broadcast Programming – Watch for Legal Issues

It is time for our update on the coming month’s regulatory dates and deadlines to which broadcasters should be paying attention – and the deadline that probably is most important to all commercial broadcasters is not yet known.  That, of course, is the deadline for the payment of annual regulatory fees – which must be made before the federal government’s October 1 start of the new fiscal year.  We expect an announcement of the final decision on the amount of those fees for various broadcasters, and the deadlines for payment, in the next few days.  Keep on the alert for that announcement.

A second big date for all commercial broadcasters is September 6, when the lowest unit rate period for political candidate advertising – the “political window” – opens for the November 5 general election.  During this 60-day period prior to the general election, legally qualified candidates buying advertising on a broadcast station get the lowest rate for a spot that is then running on the station within the same class of advertising time and in the same daypart (see our article here on the basics of computing LUR).  Candidates also get the benefit of all volume discounts without having to buy in volume – i.e., the candidate gets the same rate for buying one spot as the station’s most favored advertiser gets for buying hundreds of spots of the same class.  For a deeper dive on how to prepare for the November general election, see our post, here, which also includes a link to our comprehensive Political Broadcasting Guide. Continue Reading September 2024 Regulatory Dates for Broadcasters – FCC Regulatory Fees, LUC Window for the General Election, Comment Deadlines on AI in Political Advertising and More